The Hawaiian gazette., 1887-03-15

BEFORE JUDD, c. J., M'cULLY, PRESTON AND
FoRNANDRR j.. BICKERToN, J. HAVING BEEN
OF COUNSEL IN THE CASE DID NOT SIT.
Opinion of the Court by PRESTON j.
This is an appeal by the Pacific
Navigation Co. from a decision of the
Chief Justice whereby he held the
steamer flames l. Dowsett" solely to
blame for collision which happened
between that vessel and the schooner
"Moiwahine," on the night of the 29th
of June, 1886, and awarded the sum
of S676.30 to the owners of the
schooner for damages sustained by
reason of such collision.
The facts of the case appear fully
in the decision of the Chief Justice
and need not be repeated here, except
so lar as may be necessary to properly
understand the claim made on behalf
Of the James I. Dowsett."
The appellant claims that the decis-
ION OF the Chief Justice is wrong in
holding the "Dowsettn solely to blame
and contends
l. That the weight of evidence
shows the "Moiwahine" to be in fault
in not exhibiting any lights.
2. That therefore the ''Moiwahine"
could not recover any damages against
the 'Dowsett," but should be held
liable because the neglect to carry
lights was culpable omission and a
violation of statute law.
In support of this contention coun-
sci cited Gnter alia) 1.-The Olivia" 1
Lush. 497. LARGO VS.. Martha Eliza
beth, 1 Sawyer 129. The Carroll" s
Wallace 302. The D. P. Lowell 124,
Taylor vs. HARDWOOD, Taney's Decis
ions 437- The Helen Mar, 2 Lowell.
40.
3. That the neglect to exhibit lights
contributed to the collision and there
fore the damage should be divided.
4. That the collision was caused by
the improper navigation of the Moi
wahine" Immediately preceding the
collision through her captain order
ing her helm to be put up and to slack
off the sheet, instead of ordering the
helm to be put down, or keeping her
course.
The Scotia, IA Wall. 10.
st. John vs.. Paine, 10 How. 557.
The Genessee Chief, II How. 443,
and other authorities were cited in
support of this argument.
On behalf of the respondents it was
commended the evidence showed that
the "Moiwahine" carried proper lights,
that the maneuvre ordered by the
captain, was proper under the circum-
stances in which his vessel was placed,
and even supposing the 'Moiwahine"
did not show any lights, yet if the
''Dowsett" could have avoided the
collision she would be responsible,
and that it would have been avoided
had the 'Dowsett" kept a proper
lookout.
The 'Ariadne," Is Wallace, AIS.
Counsel for the respondent also
cited:
1 Parsons on Maritime Law, PIP.
100, 1872, 1913, 395, 1896.
Chamberlain ct al. VS.. Ward, 81
Howard, $40, ST..
st. John VS.. Paine ct al, Curtis Dec.
.. S. S. c., 500.
Genessee Chief VS.. Fitzhugh, 10
Dec. q. S. S. c., DAT.
Ward ct al, VS.. The "Ogdensburg,"
5 Mclean, 634.
LARGO VS.. Schooner Martha and
Elizabeth, Saw. 1874.
Baker VS.. City of New York, Cliff
ford SO.
Steamboat Neptune, Olcott 495.
Empire State, 1 Benedict's Adm. 81.
By THE CoURT:-In respect to the
point, that the 'Moiwahine" did not
show any lights, the evidence is GER
tainly very conflicting, as is usual in
cases of this nature. The Court be-
low found that the ''Moiwahine" did
carry the proper lights, and in this
respect gave more credit to the wit
nesses on behalf of that vessel, than
to those on board the "Dowsett." and
we see no reason on a careful consid
Grafton of the whole of the testimony
and Of the arguments of counsel, to
differ from the conclusion arrived at
by the Chief Justice on this point; on
the contrary we think and feel no
doubt that the ''Moiwahine" did carry
the lights required by law, and in their
proper position
As to the second point that the al
legged neglect of the "Moiwahine" to
exhibit any lights, disentitles her to
recover any damages, it is hardlyn nee
essary from the view we have taken
of the evidence to consider it, except
for the purpose Of passing upon the
authorities cited by counsel for the
appellants.
The principal case relied upon is
the Olivia, in which Dr. Washington
says: Il Washington, SOP ''The ques-
" ton now to be determined is,
whether this culpable omission of
" the Safe Return to show light is
- to be considered as blameabIe dis
regard of ordinary nautical precau-
-" ton, or violation of statute law.
" If the former only, then the plains
" tiffs will be entitled to recover half